Opinion
9342N Index 155912/18
05-16-2019
In re Richard HOROWITZ, M.D., Petitioner–Appellant, v. Howard ZUCKER, M.D., et al., Respondents–Respondents.
Jacques G. Simon, Jericho, for appellant. Letitia James, Attorney General, New York (Philip V. Tisne of counsel), for respondents.
Jacques G. Simon, Jericho, for appellant.
Letitia James, Attorney General, New York (Philip V. Tisne of counsel), for respondents.
Gische, J.P., Kahn, Gesmer, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Melissa A. Crane, J.), entered November 28, 2018, denying the petition to quash an administrative subpoena issued by respondent New York State Department of Health, State Board for Professional Medical Conduct, to declare the subpoena unconstitutional, and to issue an injunction, and granting respondents' cross motion to compel compliance with the subpoena, unanimously affirmed, without costs.
In light of the confidentiality requirements imposed by Public Health Law § 230(11)(a), the article 78 court's in camera review of the complaint submitted to respondents concerning potential professional misconduct by petitioner was warranted (see Matter of Levin v. Murawski, 59 N.Y.2d 35, 42 n 4, 462 N.Y.S.2d 836, 449 N.E.2d 730 [1983] ; Matter of Levin v. Guest, 112 A.D.2d 830, 832, 492 N.Y.S.2d 749 [1st Dept. 1985], affd 67 N.Y.2d 629, 499 N.Y.S.2d 680, 490 N.E.2d 546 [1986], cert denied 476 U.S. 1171, 106 S.Ct. 2894, 90 L.Ed.2d 981 [1986] ; Atkins v. Guest, 201 A.D.2d 411, 411–412, 607 N.Y.S.2d 655 [1st Dept. 1994] ; Halper v. State Bd. for Professional Med. Conduct, 151 A.D.2d 643, 644, 542 N.Y.S.2d 707 [2d Dept. 1989] ; Matter of St. Elizabeth's Hosp. v. State Bd. of Professional Med. Conduct, Dept. of Health of State of N.Y., 174 A.D.2d 225, 228, 579 N.Y.S.2d 457 [3d Dept. 1992] ; Matter of BU 91–04–1356A, 186 A.D.2d 1054, 588 N.Y.S.2d 954 [4th Dept. 1992] ). The court's in-camera review and consideration of the confidential documents in assessing whether the subpoena was valid and enforceable did not violate petitioner's Fourth Amendment or Due Process rights (see Matter of Michaelis v. Graziano, 5 N.Y.3d 317, 323, 801 N.Y.S.2d 790, 835 N.E.2d 650 [2005] ; Murawski, 59 N.Y.2d at 42 n 2, 462 N.Y.S.2d 836, 449 N.E.2d 730 ; Atkins, 201 A.D.2d at 411–412, 607 N.Y.S.2d 655 ; see generally Securities & Exch. Commn. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 [1984] ). The court therefore correctly denied petitioner's request for declaratory relief and an injunction pursuant to 42 USC § 1983 (see generally Duffy v. Holt–Harris, 159 A.D.2d 542, 552 N.Y.S.2d 407 [2d Dept. 1990], lv dismissed 83 N.Y.2d 801, 611 N.Y.S.2d 136, 633 N.E.2d 491 [1994] ).
The court also properly ordered petitioner to comply with the subpoena, as it was valid and enforceable (see generally Murawski, 59 N.Y.2d at 41, 462 N.Y.S.2d 836, 449 N.E.2d 730 ). Respondents had authority to issue the subpoena pursuant to Public Health Law § 230(10)(k), and the court's in camera review established relevancy and a basis for the inquisitorial action (see Matter of Levin v. Guest, 112 A.D.2d at 832, 492 N.Y.S.2d 749 ).
Even assuming that the court did not specifically delineate which facts it deemed essential to its decision ( CPLR 4213[b] ), the record is sufficient for our review, and it is not necessary to remand the matter to the court (see Matter of Allen v. Black, 275 A.D.2d 207, 209, 712 N.Y.S.2d 487 [1st Dept. 2000] ; Matter of Zisman, 128 A.D.2d 789, 513 N.Y.S.2d 486 [2d Dept. 1987] ).